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Will Kagan Be Confirmed?

In thinking in an earlier post about Justice Stevens’ replacement, I suggested that Obama would likely choose the most liberal woman he could get through the Senate. I had in mind either his eventual choice, Elena Kagan, or Appeals Court Judge Diane Wood. My guess is that Obama would have preferred Wood, who has a demonstrably more liberal outlook than Kagan, but at age 59, Wood’s judicial shelf-life is likely shorter than Kagan’s, who is only 50. So Kagan, currently Obama’s Solicitor General and the former Dean of the Harvard Law School, gets the nod.

The question now becomes: will Kagan be confirmed by the Senate? Note that she has already gone through Senate scrutiny once, when she won confirmation as Obama’s Solicitor General in March, 2009 by a vote of 61-31. Both supporters and opponents of her nomination as Solicitor General, however, have noted that they believe that the criteria for a lifetime appointment to the nation’s highest court differ from considerations for a political appointee who leaves office with the president. So we can’t necessarily use the previous vote as a benchmark for predicting her court nomination vote

As a court nominee, Kagan brings several strengths to the table: she has some executive branch experience, both as solicitor general and from her four years working as a White House legal counsel and domestic adviser to President Clinton. Presumably she possesses a greater appreciation for the executive branch’s perspective on court rulings, particularly when it comes to implementing those decisions. Lacking time on the bench she has very little in the way of a judicial paper trail that can be used against her. Some progressives may cite an abortion memo she wrote for Clinton as a mark against her, but I doubt any Senate Democrats will hold this against her. And in her brief stint as Dean of the Harvard Law School, she reportedly demonstrated skill at coalition building.

At the same time, however, some of these strengths can also be viewed as weaknesses. Despite Senate Judiciary Chairman Pat Leahy’s claim that Kagan will bring much needed diversity to the Court, she in fact has spent most of her professional life cloistered in academia, and her Ivy-League education (Princeton B.A., Harvard Law School J.D.) doesn’t exactly inspire confidence that she understands the concerns and hopes of Mr. and Mrs. Joe Sixpack. If confirmed, she will add still another Harvard law degree to a bench composed solely of Harvard or Yale-taught judges. As Dean of Harvard Law School Kagan became embroiled in the “Don’t Ask , Don’t Tell” controversy by supporting the school’s policy of banning military recruiters from campus as long as the military prevented openly gay individuals from serving. Harvard’s policy was rescinded only after Congress, with the support of the Supreme Court, threatened to block government aid to the schools who prevented the military from recruiting on campus. And there is undoubtedly other material in her otherwise sparse legal writings and decisions as Solicitor General that can be used against her.

Is this enough material to mount a challenge to Kagan’s nomination? It is if the Republicans view opposition to be in their political interest. Frances Lee, a political scientist at Maryland, has recently written an interesting book titled Beyond Ideology: Politics, Principles and Partisanship in the U.S. Senate in which she argues that in this era of strongly unified congressional parties, the electoral fortunes of both Democrats and Republicans are increasingly linked to the President’s ability to get his legislation through Congress. Lee’s argument, I think, can be extended to a president’s judicial nominees. As a party, Democrats benefit if Obama’s nominee is confirmed, and Republicans gain if her confirmation is blocked. This means that as we head into the stretch run to the November midterm, Republicans are less likely to view Kagan’s nomination in terms of her judicial philosophy, since she isn’t likely to change the ideological balance on the Court in any case, and instead use the confirmation hearings as an opportunity to remind voters why Republicans offer a viable alternative to the Obama-led Democrats. The key question becomes how to frame their opposition. In my view, Kagan’s weakness is not her judicial record or paper trail – she doesn’t have much of one – or her ideology (most observers peg her as a pragmatic liberal but there’s a lot of squishiness here). Instead, I think Republicans will attack her for being part of the northeast intellectual “elite” that lacks empathy with “ordinary” Americans across the country. They will try to paint a picture of Kagan in which her upbringing, her professional life, her opposition to military recruitment and her F.O.O. (Friend of Obama) credentials will all be combined to portray her as a judge who will be out of touch with the interests of the “common people” living in Smalltown, USA.

Will such a strategy work? Recall that Sonia Sotomayor was confirmed with a vote of 68-31. All Democrats who voted supported her. Nine Republicans, listed here, also voted for Sotomayor, while 31 – including then Republican Arlen Specter, opposed her. I’m assuming that no Republicans who opposed Sotomayor will vote for Kagan. That leaves the nine Republicans listed here as potential swing votes.

As a woman and an Hispanic, it was hard for moderate Republicans to vote against Sotomayor. I think it will be easier for some of them to oppose Kagan, so I expect the Republican “no votes” to increase above 31. How much above? I’ll set the over/under at 35 votes (all Republican) in opposition.

Ok, it’s time to weigh in. Give me your thoughts on the Kagan selection, and the likely number of votes in opposition to her confirmation.

As usual, an “It’s the Fundamentals, Stupid!” Presidential Power t-shirt – modeled here by Mike Norris, a previous contest winner – is at stake. (Notice the “Thanks Teddy” poster in the background of Mike’s picture – undoubtedly a reference to Teddy Williams, the great Red Sox outfielder). In case of ties the winner will be determined by a coin flip.

I’m going to guess 34 votes against, as I agree that Kagan’s nomination will be more contentious than Sotomayor’s, but perhaps not much more as she seems likely to be less liberal than Stevens, whom she’s replacing.

This is a wild guess, but I’m going to say she’s confirmed 58-42. I think the Republicans will be strong against her and the two areas of concern may be free speech and the 2nd amendment. There are several Democratic areas (PA, MN, WI, etc. where that’s poison. A wild guess but why not?